v D. Ta Farms Pty Ltd v Farm Fresh Investment Company Pty Ltd
[2011] NTSC 101
•5 December 2011
V. D. TA Farms Pty Ltd & Ors v Farm Fresh Investment Company Pty Ltd
[2011] NTSC 101
PARTIES:V. D. TA FARMS PTY LTD
(ACN 138 452 356)
And:
MABAZZA, Sally Huyen Pham
And:
TA, Van Dang
V
FARM FRESH INVESTMENT COMPANY PTY LTD
(ACN 131 335 307) TRADING AS “PRODUCE OF VIRGINIA” AS TRUSTEE FOR BEST FRUIT UNIT TRUST
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:100 of 2011 (21128029)
DELIVERED: 5 December 2011
HEARING DATES: 15 November 2011
JUDGMENT OF: SOUTHWOOD J
CATCHWORDS:
PRACTICE AND PROCEDURE – Application for summary judgment by the plaintiff – contractual debt – disputed facts – whether the defendant’s account of the facts had sufficient prima facie plausibility to merit further investigation – application granted
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332; Commonwealth Development Bank of Australia v Karastavrou (VSC, Beach J, No 4558/1995, 12 November 1996, unreported); Evans v Bartlam [1937] AC 473; Geoffrey W Hill & Associates v King (1992) 27 NSWLR 288; Hausman v Abigroup Contractors Pty Ltd [2009] VSCA 288; Re LJ Young Manufacturing Co [1900] 2 Ch 753; Suburban Homes Pty Ltd v Ward [1928] VLR 267; Symon and Co v Palmer’s Stores(1903) Ltd [1912] 1 KB 259, applied
Agar v Hyde (2000) 201 CLR 552; Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122; Country Estates Pty Ltd v Leighton Contractors Pty Ltd (1975) 49 ALJR 173; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Sportsbet Pty Ltd v Moraitis [2010] NTSC 24, followed
REPRESENTATION:
Counsel:
Plaintiff:J Sivyer
Defendant:A Woodcock
Solicitors:
Plaintiff:Bowden McCormack
Defendant:Maleys
Judgment category classification: C
Judgment ID Number: Sou1112
Number of pages: 22
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINV. D. TA Farms Pty Ltd & Ors v Farm Fresh Investment Company Pty Ltd
[2011] NTSC 101
No 100 of 2011 (21128029)
BETWEEN:
V. D. TA FARMS PTY LTD
(ACN 138 452 356)
First Plaintiff
AND;
SALLY HUYEN PHAM MABAZZA
Second Plaintiff
AND:
VAN DANG TA
Third Plaintiff
AND:
FARM FRESH INVESTMENT COMPANY PTY LTD
(ACN 131 335 307)
TRADING AS “PRODUCE OF VIRGINIA” AS TRUSTEE FOR BEST FRUIT UNIT TRUST
Defendant
CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 5 December 2011)
The plaintiffs have applied for summary judgment by summons filed on 30 September 2011. The plaintiffs claim that the defendant is indebted to the first plaintiff or, in the alternative, to the second and third plaintiffs for $166,807.31 received by the defendant for the sale on consignment of the plaintiffs’ mangoes during the 2010 mango season.
The principles applicable to an application for summary judgment
In Sportsbet Pty Ltd v Moraitis[1] I reviewed the principles that govern an application by a plaintiff for summary judgment. I have repeated them below.
Rule 22.06 of the Supreme Court Rules states that on the hearing of an application for summary judgment the court may give such judgment for the plaintiff against the defendant as is appropriate unless the defendant satisfies the court that, in respect of the plaintiff’s claim, a question ought to be tried or there ought, for some other reason, be a trial of the claim. The main criterion to be applied is that, after the matter involved has been explained to the Judge, there must be a real uncertainty as to the plaintiff’s right to judgment.[2] The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.[3] In Agar v Hyde[4] the High Court observed that:
It is of course, well accepted that a Court whose jurisdiction is regularly invoked … should not decide the issues raised in those proceedings in the summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
The provisions of O 22 of the Supreme Court Rules apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment.
The following principles[5] are also of relevance to this particular application:
(1)Unless the plaintiff makes a proper affidavit the defendant is not required to answer the application for judgment.[6]
(2)The court will give the plaintiff judgment unless the defendant shows cause against the application to the satisfaction of the court.[7] Cause may be shown by affidavit or otherwise.
(3)The court will normally require an affidavit by or on behalf of a defendant before a defendant will be granted leave to defend. The defendant is required to use such diligence as is reasonable in the circumstances to put before the court in a summary form all of the evidence relied on by the defendant in defence of the plaintiff’s claim.[8]
(4)The affidavit material relied upon by a defendant may contain statements of fact based on information and belief provided the source of the evidence is identified and the grounds of belief are set out.[9] A defendant may also obtain leave to defend if the defendant tenders evidence which, though not evidence of the facts, shows such evidence exists and will be available at the trial.[10]
(5)A defendant should condescend into particulars.[11] The evidence of the defendant must deal specifically with the facts relied upon by the plaintiff in support of its application. The affidavit of the defendant should state clearly and concisely what facts are relied on as supporting the defence.[12]
(6)The defendant must point to some material, legal or factual, that provides an arguable response to the claim and not leave it to the judicial officer hearing the application to trawl through the material to find an answer to the plaintiff’s claim.[13]
(7)The evidence of the defendant should show that there is a real case to be investigated either on the facts or in law.
(8)A defendant will be granted leave to defend if there are facts which, if true, would constitute a defence to the plaintiff’s claim. The court is reluctant to try a case on affidavit where there are facts in dispute.[14]
(9)An important issue is whether the defendant’s account of the facts has sufficient prima facie plausibility to merit further investigation.[15]
As to the principles summarised in par [5](3) above, in Hausman & Anor v Abigroup Contractors Pty Ltd[16] the Victorian Court of Appeal stated:
The defendant must satisfy the Court that, in respect of the claim to which the application for judgment relates, a question ought to be tried, or there ought for some other reason to be a trial of that claim. The Court, if so satisfied, will give the defendant leave to defend and the proceeding will continue to trial in the ordinary way. The Court will normally require an affidavit by, or on behalf of, the defendant before it will be satisfied that the defendant is entitled to leave to defend. The standard of diligence required of the defendant in preparing a case in opposition to the application, especially if under pressure of time, is perhaps not as high as that required in preparing for trial.
Nonetheless, the defendant is required to use reasonable diligence to put before the Court, albeit in summary form, all the evidence relied on in the defence …
The authorities suggest that an affidavit in opposition to an application for summary judgment must provide sufficient particulars to enable the defence case to be properly understood. A bald denial that the defendant is indebted to the plaintiff will not suffice. The affidavit should, so far as practicable, deal specifically with the plaintiff’s claim, and the facts set out in the supporting affidavit to establish that claim. It should state clearly and concisely what the defence is, and identify the facts relied upon in support of that defence.
The pleadings
By an Amended Writ and Amended Statement of Claim filed on 9 November 2011 the first plaintiff claims as follows. On and following 1 July 2008 the defendant owned and operated a wholesale produce store at the Footscray Wholesale Fruit and Vegetable Market. Prior to 1 July 2009 the second and third plaintiffs who were business partners owned and operated a mango farm and pack house business located at Darwin River. In about May or June 2009 the second and third plaintiffs made an oral contract with the defendant. They contracted to ship their mangoes to the defendant who was to sell the mangoes and pay the second and third plaintiffs, within 21 days of the sale of the mangoes, the daily market price for the mangoes that were sold less the defendant’s commission. On and from 1 July 2009 the first plaintiff owned and operated the mango farm and pack house business located at Darwin River which was previously owned by the second and third plaintiffs. Since 1 July 2009 the second and third plaintiffs acted as the agents of the first plaintiff. Between 15 July 2010 and 21 October 2010 the first plaintiff supplied mangoes to the defendant. It did so in accordance with the oral contract made between the second and third plaintiffs and the defendant. As a result of the receipt and sale of those mangoes the defendant became indebted to the first plaintiff for any proceeds of the sale of the mangoes less the defendant’s commission and the defendant remains indebted to the first plaintiff in the sum of $166,807.31 for the proceeds of the sale of 8,128, 10 kilogram boxes of mangoes less the defendant’s commission.
In paragraph six of the Amended Statement of Claim the plaintiffs plead that the terms of the oral contract made between the second and third plaintiff and the defendant are as follows.
(a) The second and third plaintiffs were the mango grower and packer.
(b) The defendant was the second and third plaintiffs’ sales agent.
(c) The daily market price was the sale price of the mangoes less the defendant’s commission.
(d) Upon the sale of each consignment of mangoes the defendant would produce a “Recipient Created Tax Invoice” detailing:
(i)the variety and grade of mango received
(ii)the number of trays received
(iii)the daily market price to be paid by the defendant to the second and third plaintiffs
(iv)the total amount owed by the defendant to the second and third plaintiffs for each consignment that was sold.
The Amended Writ and Amended Statement of Claim plead, in the alternative, that the defendant was indebted to the second and third plaintiffs in the sum of $166,807.31.
The defendant filed a defence to the Writ and Statement of Claim but has not filed a defence to the Amended Writ and Amended Statement of Claim. In its defence the defendant admits: that shortly after its incorporation it owned and operated a wholesale produce store at the Footscray Wholesale Fruit and Vegetable Market; the terms of the oral contract, which were originally pleaded to have been made between the first plaintiff and the defendant; and that the defendant paid the first plaintiff the sum of $257,014.14 for mangoes received by the defendant in the 2010 mango season. Save that the defence denies that the defendant is indebted to the first plaintiff, the defence otherwise pleads non admissions to the allegations pleaded in the original statement of claim. No particulars are pleaded of the defendant’s denial.
The defendant’s actual defence is set out in the Affidavit of Mr Phung Kim Tran affirmed on 9 November 2011. The affidavit is internally inconsistent. However, Mr Phung Kim Tran deposes, among other things, that the prices for the mangoes specified in Recipient Created Tax Invoices for 2010 are incorrect. The invoices were prepared by the defendant’s office staff and the staff relied on incorrect information. The price of the mangoes set out in the 2010 Recipient Created Tax Invoices were based on the estimated or indicative sale price not the actual sale price of the mangoes and the defendant’s staff failed to deduct the defendant’s commission from the actual sale price of the mangoes before specifying the price in the invoices. Consequently, many of the 2010 Recipient Created Tax Invoices overstated the price payable by the defendant to the first plaintiff.
In the same affidavit Mr Phung Kim Tran sets out what he says were the correct prices payable by the defendant to the first plaintiff for the 2010 mangoes. On the figures contained in Mr Phung Kim Tran’s corrected invoices, I have calculated that the defendant is indebted to the first plaintiff in the sum of $126,183.31. So that the defendant’s main ground of defence is, at best, a partial defence only.
The principal issue
The principal issue in the proceeding is does the defendant’s account of the facts have sufficient prima facie plausibility to establish a real uncertainty about whether the prices specified in the Recipient Created Tax Invoices for 2010 were correct? In my opinion, it does not. I do not accept the defendant’s assertions that the prices specified in the Recipient Created Tax Invoices for 2010 were incorrect. It is clear that there is no real question to be tried in this proceeding. I have no real uncertainty as to the first plaintiff’s right to judgment.
The evidence is support of the plaintiffs’ claim
The plaintiffs read the following affidavits: two affidavits of Sally Huyen Pham Mabazza sworn on 30 September 2011; an affidavit of Barry Graham Hansen sworn on 30 September 2011; an affidavit of Lau Ken Ming sworn on 4 November 2011; an affidavit of Van Dang Ta sworn on 9 November 2011; an affidavit of Sally Huyen Pham Mabazza sworn on 9 November 2011; an affidavit of Sally Huyen Pham Mabazza sworn on 10 November 2011; and an affidavit of Hedwiges Maria Johanna Van Der Biezen sworn on 15 November 2011.
The plaintiffs’ account of the relevant events and transactions is as follows.
The second and third plaintiffs are husband and wife. For a period of time prior to 1 July 2009 they were in a family partnership which owned and operated a mango orchard comprised of 4000 trees at Lot 2491 Cox Peninsula Road. Three varieties of mango are grown on the orchard: Nam Doc Mai, which is harvested around July or August each year, and Kensington Pride and R2E2, which are harvested from September through to January of each mango season. The second and third plaintiffs packed and freighted their mangoes interstate for sale. The partnership traded under the trading name of “Dang Van Ta & Sally Huyen Pham Mabazza”.
In October 2006 the second and third plaintiffs entered into an oral contract with Produce of Virginia Pty Ltd for the sale of their mangoes. The company owned and operated a wholesale produce store at the Footscray Wholesale Fruit and Vegetable Market. In accordance with the contract the second and third plaintiffs packed and freighted their fruit to Produce of Virginia Pty Ltd and the company sold their mangoes on consignment.
In 2008 the defendant purchased the wholesale fruit and vegetable business of Produce of Virginia Pty Ltd and took ownership of and operated the wholesale produce store at the Footscray Wholesale Fruit and Vegetable Market under the business name of “Produce of Virginia” which the defendant registered on 6 August of 2008. Presumably as part of the sale of business arrangements Produce of Virginia Pty Ltd changed its company name to M & L Evengelou Pty Ltd on 7 July 2008. The directors of the defendant are Phung Kim Tran, Lisa Pham and Thi Ngoc Nga Le.
Before the start of the mango season in 2008 the second and third plaintiffs were introduced to Mr Phung Kim Tran and Son Nguyen, the father of Lisa Pham. The men were introduced to them at their farm at Darwin River by Michael Evengelou who owned Produce of Virginia Pty Ltd. Mr Phung Kim Tran was introduced as the new owner of the wholesale fruit and vegetable business. At that meeting an oral contract was made between the second and third plaintiffs and the defendant about the supply of mangoes to the defendant during the 2008 mango season. It was agreed that the defendant would pay the second and third plaintiffs within 21 days of the sale of their fruit.
The second and third plaintiffs packed and freighted their mangoes to the defendant during the 2008 mango season. Upon receipt of the second and third plaintiffs’ mangoes the defendant sold their fruit at the wholesale market, deducted its commission and paid the second and third plaintiffs in full in accordance with the Recipient Created Tax Invoices it generated. The first payment from the defendant was received by the second and third plaintiffs on 18 August 2008 and the last payment was received on 30 October 2008.
In May or June of 2009 Mr Phung Kim Tran again visited the second and third defendants at their farm at Darwin River. Mr Phung Kim Tran told the second and third plaintiffs that if they kept sending him their fruit they would be paid good prices and it was agreed that the second and third defendants would continue to send their fruit to the defendant if the defendant sent them invoices every week that the fruit was sold and the second and third plaintiffs were paid within a short time of the fruit being sold. Mr Tran said that he would send them an invoice every week and that he would pay the second and third plaintiffs within 7 days of the fruit being sold.
During the 2009 Mango season the second and third plaintiffs again picked, packed and freighted their mangoes to the defendant. The defendant again provided Recipient Created Tax Invoices on the sale of each shipment of mangoes and faxed them to the second plaintiff. All invoices were paid in full by the defendant and payment was usually made within 14 days to one month after the sale of each consignment of mangoes. The first payment was received on 3 July 2009 and the last payment was received on 15 October 2009.
The second and third plaintiffs incorporated their business and on 1 July 2009 the first plaintiff was registered. The family mango farming and packing business was assigned to the first plaintiff and then conducted by the first plaintiff. It does not appear that the second and third plaintiffs told Mr Phung Kim Tran at the meeting in May or June 2009 that they were thinking of incorporating their business. However, it is apparent that at some stage during 2009 the defendant became aware that the first plaintiff was the mango producer as the invoices created by the defendant in 2009 were addressed to “V.D.T.A. Farms” which is an abbreviation of the company name of the first plaintiff.
In April or May 2010 Mr Phung Kim Tran again visited the second and third plaintiffs at the mango farm at Daly River. He requested the second and third plaintiffs to send him mangoes in 2010 and he said that invoices would be sent weekly as they were in 2009 and the defendant would pay quickly. The second plaintiff said that we will send you our fruit again this year. Her evidence is that she was acting as agent for the first plaintiff when she had this conversation with Mr Phung Kim Tran.
During the 2010 mango season the first plaintiff freighted its mangoes to the defendant. During 2010 the defendant generated Recipient Created Tax Invoices with the reference, dockets numbered 1 to 32, presumably being a reference to the delivery dockets for the various consignments of mangoes. The invoices were produced by the defendant and provided to the first plaintiff in the period from 15 July 2010 to 21 October 2010. The defendant paid the first plaintiff for the amounts invoiced in the invoices referenced to dockets numbered 1 to 22 and made part payment for the invoice referenced to docket number 23 by depositing cheques to the bank account nominated by the second plaintiff. The defendant paid the first plaintiff $257,014.14 during the 2010 mango season. However, the defendant has not paid the first plaintiff for the balance of the invoice referenced to docket number 23 nor for the amounts in the invoices referenced to dockets 24 to 32 inclusive. The total balance unpaid is $166,807.31.
On 25 November 2010 the defendant deposited two cheques in the plaintiffs’ bank account being cheques numbered 00403077 for $16,846.28 and 00403106 in the sum of $11,288.59. Both cheques were dishonoured.
In early December 2010 the second plaintiff spoke to Mr Phung Kim Tran. He told her that he was having some troubles. The defendant had purchased a shopping centre. The directors thought the shopping centre would cost $15,000,000.00 but it had cost more. The defendant did not have enough money to pay for the building. Mr Phung Kim Tran said that he would pay the money that was owed to the first plaintiff within two or three weeks.
In December 2010 the second plaintiff travelled to Melbourne to meet with Mr Phung Kim Tran. She met him at Market Stall 48. He said that he would pay her and he asked for a couple of weeks to pay her. He also said that the shopping centre was nearly finished and the second plaintiff would be invited to the opening of the shopping centre.
In January 2011 the second plaintiff again spoke to Mr Phung Kim Tran and she has done so on many occasions since that date. On each occasion he told her, “One hundred percent we will pay you. We have had a difficult time because we have restructured the company. Please allow us time to pay you. I will have the money in the bank when I have finished the building and got it rented. I will pay you then.” On later occasions Mr Phung Kim Tran said, “I will pay you next week.” However, the defendant has not paid the plaintiff the sum of $166,807.31.
In May 2011 Bowden McCormack were retained by the first plaintiff to commence debt recovery proceedings against the defendant. On 6 July 2011 Mr Nguyen, who is the plaintiffs’ solicitor, spoke to Mr Phung Kim Tran on the telephone. During that telephone conversation Mr Phung Kim Tran told Mr Nguyen that the defendant intended to pay the sum of $166,807.31 to the first plaintiff and he was seeking a lawyer who would advise how payment would be made as the defendant needed to borrow the funds.
The sum of $166,807.31 has not been paid and the first plaintiff commenced these proceedings on 25 August 2010.
The evidence in support of the defence case
The defendant read two affidavits of Phung Kim Tran, one was affirmed on 9 November 2011 and the other was affirmed on14 November 2011.
The defendant’s account of the relevant events and transactions is internally inconsistent. In the affidavit he affirmed on 9 November 2011, Mr Phung Kim Tran gives two versions of what is said to have occurred. The first version is as follows.
Mr Phung Kim Tran and Mr Son Nguyen met with the second and third plaintiffs in 2008. During the course of the meeting an agreement was reached about the sale of the second and third plaintiffs’ mangoes by the defendant. The terms of the agreement were: (a) the plaintiffs would send their fruit to Melbourne; (b) the defendant would sell the fruit at the best available market price; (c) the defendant would retain a commission from the proceeds of the sale of the fruit of around 15 percent depending on the sale price secured for the fruit (if the sale price of the fruit was very high the defendant often charged between 10 to 12 percent commission, but if the sale price was low this would increase to as high as 15 percent to cover the costs of sale); (d) the defendant would remit the balance of the monies to the plaintiffs within 7 days after the sale of the entire fruit consignment; and (e) the defendant would within 7 days of receiving the consignment of fruit advise the plaintiffs in writing of the likely current market price of the mangoes.
It is to be noted that the contract deposed to by Mr Phung Kim Tran is inconsistent with the admission made in par 6 of the defendant’s defence.
Mr Phung Kim Tran further deposes that during each mango season the second plaintiff would regularly call him to confirm that the fruit had arrived in Melbourne and to ask what price the fruit was expected to receive. Mr Phung Kim Tran would tell the second plaintiff the expected price of the mangoes and he would record this information in the first column of the two purchase price columns of the defendant’s Stock and Purchase Record Book. The estimated price was quoted to the second plaintiff before the defendant was able to start selling the mangoes.
The second plaintiff insisted that the defendant confirm in writing the receipt of the goods, the quantity received and the market price within seven days of receipt of the fruit. This was done by creating and faxing to the second plaintiff the Recipient Created Tax Invoices. The prices specified in the invoices were indicative only as the fruit that was received by the defendant could not be sold as soon as it arrived because the mango trays needed to be sorted into their correct sizes and the fruit needed to ripen to achieve a better price. This process took between 12 to 15 days to complete before the fruit could be marketed so the actual market price was invariably different to the indicative prices contained in the invoices which were also gross of commission. The Recipient Created Tax Invoices were not intended to be a true record of what the defendant owed to the first plaintiff.
In summary, the first version of what the defendant says occurred is that the prices in the Recipient Created Tax Invoices were indicative only and were gross of commission. This version of events lacks the ring of truth and reality about it as the invoices contain no statement to the effect that the prices are indicative only, no attempt was ever made to reconcile the estimated prices with the actual prices and until the defendant stopped paying the first plaintiff, the defendant was paying the first plaintiff in accordance with the Recipient Created Tax Invoices. Further, it is inconsistent with the second plaintiff’s evidence that on numerous occasions Mr Phung Kim Tran told her that the defendant would pay the amount which the plaintiffs claimed was owing to them. Nowhere in either of his affidavits does Mr Phung Kim Tran deny that he told the second plaintiff that he would pay the amount claimed by the first plaintiff.
The second version of what the defendant said occurred is as follows. Mr Phung Kim Tran has only now discovered on a detailed review of the documents that are relied upon by the plaintiffs in these proceedings that the Recipient Created Tax Invoices were prepared by his office staff on the wrong information. The staff used the estimated sale price and not the actual price that was achieved for the sale of the mangoes and the prices used did not take into account the defendant’s commission. The figures were based on the estimate figures recorded in the first column of the two purchase price columns of the defendant’s Stock and Purchase Record Book when they should have been based on the price recorded in the second column and no commission was deducted. The errors which were made by the office staff occurred in all of the unpaid invoices for 2010 and seven of the paid invoices. Further, in 2010 the defendant paid for many consignments of the first plaintiff’s mangoes before the mangoes were sold by the defendant.
Mr Phung Kim Tran annexes to his affidavit what he says are the appropriately corrected invoices. According to Mr Phung Kim Tran’s first affidavit not all of the Recipient Created Tax Invoices created by his office staff for 2010 are incorrect. Indeed the 2010 invoices which are referenced to dockets numbered 1 to 14 required no correction.
According to Mr Phung Kim Tran’s evidence the following amounts are payable by the defendant to the first plaintiff.
Docket Number Reference Amount 1 $2,544.75 2 $7,052.32 3 $7,922.17 4 $4,184.25 5 $6,444.08 6 $5,682.35 7 $7,060.56 8 $7,168.50 9 $10,346.82 10 $3,584.25 11 $13,685.28 12 $14,060.62 13 + 14 $33,666.56 15 + 16 $26,214.39 17 $22,072.72 18 $18,248.71 19 $6,044.21 20 $17,969.60 21 $15,277.28 22 $9,716.59 23 $18,171.97 24 $19,057.60 25 $13,759.53 26 $14,427.22 27 $14,955.24 28 $18,124.46 29 + 30 $22,239.28 31 + 32 $23,516.14 Total: $383,197.45
As $257,014.14 has been paid by the defendant to the first plaintiff the amount now payable to the first plaintiff according to what the defendant says are the correct invoices is $126,183.31 being $383,197.45 less $257,014.14.
The defendant’s second version of events also lacks the ring of truth and reality about it. The second version of events is inconsistent with the defendant’s first version of events which was not that the office staff entered the wrong figures by mistake but that the figures were deliberately entered in the invoices but were indicative only. The second version of events is lacking in considerable detail. The staff who are said to have made the mistakes are not identified, no explanation is given as to why the staff chose the figures in the first column of the two purchase price columns of the defendant’s Stock and Purchase Record Book as opposed to the figures in the second column and what are said to be the real market prices obtained for the first plaintiff’s mangoes are not verified in any way.
Findings of fact
In the circumstances I have come to the following conclusions of fact.
In 2010 the first plaintiff and the defendant made an oral contract pursuant to which the defendant was to sell the first plaintiff’s mangoes, which were picked and packed during the 2010 mango season, on consignment. The contract was made between the second plaintiff, who acted on behalf of the first plaintiff, and Mr Phung Kim Tran, who acted on behalf of the defendant, at the first plaintiff’s mango farm at Darwin River prior to the start of the 2010 mango season. The terms of the contract were: (a) the first plaintiff was the mango grower and packer; (b) the defendant was the first plaintiff’s sales agent; (c) the price the first plaintiff was to receive for its mangoes was the actual sale price of the mangoes less the defendant’s commission; and (d) upon the sale of each consignment of the first plaintiff’s mangoes the defendant was to produce a Recipient Created Tax Invoice detailing: (i) the variety and grade of the mangoes received from the first plaintiff; (ii) the number of mango trays received; (iii) the price to be paid by the defendant to the first plaintiff; and (iii) the total amount owed for each consignment sold by the defendant. In accordance with the contract, during the 2010 mango season the first plaintiff’s mangoes were picked and packed and freighted to the defendant’s wholesale fruit and vegetable store at the Footscray Wholesale Fruit and Vegetable Market and were sold by the defendant. Following the sale of each consignment of the first plaintiff’s mangoes the defendant’s servants and agents prepared Recipient Created Tax Invoices in accordance with the contract the defendant had with the first plaintiff. The prices in the invoices were the correct prices. They were based on the actual sale prices of the mangoes and were net of the defendant’s commission. The defendant paid the first plaintiff by cheque in accordance with the invoices it created until the defendant got into financial difficulty. The defendant is indebted to the plaintiff in the sum of $166,807.31 and that sum is due and payable to the first plaintiff. The amounts not paid by the defendant are correctly summarised in annexure A of the affidavit of Barry Graham Hansen.
Save where his evidence is consistent with the evidence read on behalf of the plaintiffs, I reject the evidence of Mr Phung Kim Tran. In addition to the significant inconsistencies referred to in pars [32] to [43] above, his evidence is internally inconsistent or plainly incorrect in other respects and demonstrates a thorough lack of diligence in its preparation. He asserts without any foundation that many of the consignments of mangoes were paid for before they were sold, that the total amount of cash received for the amount of fruit sold for the first plaintiff during the 2010 season net of commission was $259,794.94 and that the amount paid to the plaintiff is $183,163.47. The latter figures are inconsistent with the information contained elsewhere in his affidavits and do not make any sense. Further inconsistencies and inaccuracy in Mr Phung Kim Tran’s evidence are set out in the written submissions prepared on behalf of the plaintiff on 14 November 2011. While I have not set them out in my reasons for decision, I accept those submissions.
Judgment
I order judgment for the first plaintiff. The defendant is to pay the first plaintiff $166, 807.31 plus interest. I will hear the parties further as to the calculation of the amount of interest and costs.
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[1] [2010] NTSC 24 at par [10] to par [12].
[2] Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 at 334-5.
[3] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.
[4] (2000) 201 CLR 552 at par [47].
[5] For a fuller discussion of the principles see N Williams Civil Procedure Victoria at pp 3359 to 3386.
[6] Suburban Homes Pty Ltd v Ward [1928] VLR 267; Symon and Co v Palmer’s Stores(1903) Ltd [1912] 1 KB 259 at 263-4.
[7] R 22.04 Supreme Court Rules.
[8] Hausman v Abigroup Contractors Pty Ltd [2009] VSCA 288 par [55].
[9] R 22.04(2) Supreme Court Rules; Re LJ Young Manufacturing Co [1900] 2 Ch 753.
[10] Geoffrey W Hill & Associates v King (1992) 27 NSWLR 228.
[11] Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122 at 128-9.
[12] Country Estates Pty Ltd v Leighton Contractors Pty Ltd (1975) 49 ALJR 173.
[13] N Williams Civil Procedure Victoria par I 22.04.15.
[14] Evans v Bartlam [1937] AC 473.
[15] Commonwealth Development Bank of Australia v Karastavrou (VSC, Beach J, No 4558/1995, 12 November 1996, unreported).
[16] [2009] VSCA 288.
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